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Simms v. Wise8/23/2001
mely filing of petition and service on defendants showed a lack of "due diligence" as a matter of law). The two controlling factors that establish due diligence are whether the plaintiff acted as an ordinary prudent person would act under the same circumstances and whether the plaintiff acted diligently up until the time the defendant was served. Taylor v. Thompson, 4 S.W.3d 63, 65 (Tex.App.--Houston [1st Dist.] 1999, pet. denied); Eichel, 831 S.W.2d at 43.
Simms argues that he exercised diligence by first attempting personal service on Wise in September of 1998, by employing an investigator in February of 1999, by requesting counsel in March of 1999 to accept service for her client, and finally, through citation of Wise by publication. According to the summary judgment evidence, Simms initially attempted service of process at an erroneous address exactly two months after he filed suit. The record does not reflect a reason for the initial delay between the time he filed suit and attempted service. Although Simms obtained the service of an investigator in early February, 1999, Christopher's only efforts to locate Wise occurred on two days during that same month. Thus, there is an unexplained delay of four and a half months between late September 1998 and the investigator's efforts to locate Wise. Following Christopher's lack of success, and even though counsel for Simms had made the decision in mid-March to pursue service by publication since Colaneri refused to accept service on Wise's behalf, Simms did not file an affidavit for citation by publication until June 3, 1999, a lapse of another four months. Again, there is no explanation for the delay. Finally, Simms' failure to pay a fee necessary to have the citation returned and filed with the court, thereby completing service, further delayed matters until November 2, 1999. Given all of these lengthy unexplained delays, but in particular the two-month delay between the filing of suit and the first effort at service, the four-month delay between the failed service and the hiring of the investigator, and the nearly four-month delay between the investigator's efforts and the filing of the affidavit for citation by publication, Wise conclusively established that Simms failed to exercise due diligence in serving him. See Webster v. Thomas, 5 S.W.3d 287, 291-92 (Tex.App.--Houston [14th Dist.] 1999, no pet.)(motorist's counsel failed to use due diligence to obtain service after personal injury suit was filed on last day of limitations period, and thus limitations period was not tolled, where counsel delayed service for four months and ten days following filing, called wrong court clerk's office three times regarding service, sent citation to wrong precinct for service, and delayed additional two weeks before sending service to right precinct, without providing explanation for delay); Eichel, 831 S.W.2d at 44 (two months between filing suit and issuance of citation, and nine months without any activity at all aimed at finding or serving defendant). Because there are no issues of material fact, the trial court properly granted summary judgment in Wise's favor. We overrule both issues for review and affirm the judgment of the trial court.
(Do Not Publish)
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